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08/01/2009

Idiotic or not: judges debate letting jurors asking questions

Chief Judge James Holderman of the Northern District of Illinois is so sold on new jury techniques, including allowing jurors to pose questions through the judge, that he’s considering using them later this year for the first time in a major criminal drug case. Lawyers in the case will hear about that soon.

“The 7th Circuit may say, ‘Holderman, you’re an idiot,’ if there’s an appeal and reversal,” Holderman said during an ABA panel on advocacy techniques this morning. But he’s willing to take that chance. While the techniques have been used in criminal trials in other federal courts, they haven’t been tried in his district.

Holderman is such a convert, he told the room of lawyers, that he’ll never again have a civil trial without using the new jury techniques. These methods, including giving jurors instructions before the trial begins and letting lawyers make interim statements over the course of the trial, keep jurors more tuned in, Holderman said. They also give lawyers a window on jurors’ thinking, he said.

But two other judges on the panel weren’t so convinced. Chief Judge Irma Gonzalez of the Southern District of California started shaking her head with disbelief, asking how Holderman had time to put together jury instructions to be presented at the outset of a trial. She also thought letting jurors ask questions might take too much time. She noted that she once suggested the procedure to some lawyers and they did not like the idea.

“I just think it’s time-consuming,” Gonzalez said.

Gonzalez and Judge Sue Robinson of the District of Delaware, who was also on the panel, pelted Holderman with as many questions about the techniques as the audience did. Despite her apparent resistance, Robinson was taking down notes. All of the judges agreed that time limits are a must for trials.

The new ideas Holderman propounds were developed in a three-year 7th Circuit pilot project, detailed in a 213-page report released in September 2008. Holderman told the lawyers that if anyone is trying to persuade a judge to give the new methods a try, have the judge call him.